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2009 Supreme(UK) 260
2010 (1) N.C.C. 205
UTTARAKHAND HIGH COURT
Hon’ble Mr. Justice J.C.S. Rawat
Criminal Appeal No. 277 of 2007
SRI MAKSOOD – Appellant
Versus
STATE OF UTTARAKHAND – Respondent
Decided on : 14.05.2009
For the Appellant :Mr. Abdul Wahid, Advocate
For the Respondent: Mr. Amit Bhatt, Addl. G.A.
Headnote:Narcotic Drugs and Psychotropic Substances Act, 1985, Secs. 18/20, 52, 57 — 14 kg. of Charas from one bag and 7 kg from another was recovered from the possession of the accused — Memo was prepared on the spot and FIR was lodged — No evidence to show that seal was affixed on the bundles — No evidence to show that any application was moved in the court for taking sample — No evidence to show that the seal affixed at the time of seizure was compared with sample seal before the court — Or that the court affixed its seal on the sample — Malkhana Moharir, not produced — No evidence to show that the seized contraband was kept intact in the Malkhana before it was produced in the court and was sent to F.S.L. — Held that in absence of such evidence, the search, recovery and seizure became doubtful. (Paras 2, 8)
Lokid vkS"kf/k ,oa euksRrstd inkFkZ vf/kfu;e] 1985] /kkjk 18] 20] 52] 57 & vfHk;qDr ls 14 fdyksxzke pjl ,d FkSys esa vkSj 7 fdyksxzke pjl nwljs FkSys esa cjken dh xbZ Fkh & ?kVuk LFky ij eheks rS;kj fd;k x;k Fkk vkSj FIR ntZ djkbZ xbZ Fkh & ijUrq caMyksa ij lhy yxkus dk dksbZ lk{; miyC/k ugha Fkk & bl ckr dk Hkh dksbZ lcwr ugha Fkk fd lsEiy ysus ds okLrs U;k;ky; esa dksbZ izkFkZuk i= nk;j fd;k x;k Fkk & uk gh ;g lcwr Fkk fd eky tCr djrs le; yxkbZ xbZ lhy U;k;ky; esa lsEiy lhy ls lekurk j[krh Fkh & eky[kkuk eksgfjj dks Hkh is'k ugha fd;k x;k Fkk & bl ckr dk Hkh dksbZ lcwr ugha Fkk fd tCr fd;s x;s u'khys inkFkZ eky[kkus esa lgh lyker j[ks gq, Fks blls iwoZ tc og U;k;ky; esa is'k fd;k x;k vkSj FSL dks Hkstk x;k Fkk & fu.kZ;] esa dgk x;k fd ,sls lcwrksa ds vHkko esa ryk'kh] cjkenxh vkSj tCrh lafnX/k cu xbZ FkhA ¼izLrj 2] 8½
This appeal has been preferred against the judgment and order dated 09.07.2007 passed by Addl. Sessions Judge/1st F.T.C., Nainital in Special Sessions Trial No. 26 of 2006, State Vs. Maksood, u/s 18/20 of Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred as Act, 1985) whereby the accused/appellant has been sentenced to undergo rigorous imprisonment for ten years and a fine of Rs. 1,00,000/- u/s 20 of the Act, 1985. In default of payment of fine, the accused/appellant would further undergo rigorous imprisonment for 2½ years.
2. Brief facts leading to the prosecution case are that on 26.01.2006 at about 10:00 a.m. S.I. N.R. Vishawakarma alongwith the police patrolling party was in law and order patrolling duty at Bheemtal. When they reached near Mount Alvern School, they saw a person coming from Mallital. The person was holding bag in his back. Seeing the police patrolling party coming over there, he started moving fast from there. On suspicion, the police patrolling party immediately apprehended him. After being apprehended, the accused/appellant disclosed his identity as Maksood S/o Makbool and admitted that he was having charas in the bag which he was holding in his back. The accused/appellant was informed of his legal rights of being searched before the Gazetted Officer or the Magistrate as provided under Act, 1985. The accused/appellant stated that he would not like to be searched before the Magistrate or the Gazetted Officer. He stated that as the patrolling party had already apprehended him, they could make his search well. On the said statement of the accused/appellant, a written consent letter (Ex.Ka-1) was prepared and the accused/appellant has given his consent for taking his search. When search of the bag was made, 14 kgs charas was recovered from another bag. After recovery, a recovery memo was prepared. The accused/appellant alongwith the recovered article was taken to the police station where a report to that effect was lodged. The matter was investigated by the Investigating Officer and after completing the investigation, chargesheet (Ex.Ka-8) was submitted before the court.
3. After submission of chargesheet, the accused/appellant was charged u/s 18/20 of Act, 1985. The accused/appellant denied the charge levelled against him and claimed his trial.
4. The prosecution in support of its case examined as many as five witnesses. PW1 S.I. N.R. Vishawakarma, PW3 Const. Madan Singh Parihar and PW5 Const. Vijay Khambhoj were on patrolling duty on the date of the occurrence and they have apprehended the accused/appellant alongwith the recovered article. PW2 Const. Harish Chandra and PW3 Const. Madan Singh are the police witnesses. PW4 S.I. Vishan Ram Arya is the Investigating Officer of the case. He has submitted the chargesheet Ex.Ka.8 against the accused/appellant.
5. The accused-appellant was examined u/s 313 Cr.P.C. and he has pleaded not guilty to the offence. The accused/appellant has stated that he has been falsely implicated in this case.
6. The learned Addl. Sessions Judge after appreciation of the evidence and hearing the parties convicted the accused/appellant and sentenced him as indicated above.
7. I have heard Mr. Abdul Wahid, Advocate for the accused/appellant; Mr. Amit Bhatt, Addl. G.A. for respondent/State; and perused the record.
8. Learned counsel for the accused/appellant contended that the recovery of the contraband is doubtful in this case. He has contended that the prosecution has failed to prove the proper custody of the seized article during the trial; the narcotics substances which was produced before the Court was not charas; and the entire evidence of the prosecution is doubtful as regards the dispatch of the narcotics which was recovered from the possession of the accused/appellant. The learned Addl. G.A. refuted the contention. It is in the evidence of Arresting Officers PW1 S.I. N.R. Vishawakarma as well as PW3 Const. Madan Singh Parihar that the accused/ap
